High court strikes down death penalty for juveniles

[Wycoff]

Originally posted by Imran Siddiqui Using the laws of other states as an example of the common movement of the law can be very important in a case. Many cases have been ruled on the basis that other states are moving towards a view.

I agree with you 100% on that, but it doesn't really change my point. There'd be no reason to cite other state precedent if your own state's precedents clearly supported your case. Other state precedents are used as primary support for cases in which 1. your state has never ruled on the issue, and other state precedents would allow you to win your case or 2. your state's precedents would force you to lose your case, but there's a trend in other states that support's your theory and, if your state court adopts that theory, then you'll win.

If I were arguing a case, I'd rather be arguing it based on precedent in my own state than teying to convince my state to adopt another state's methods, as your own state's precedents are much more persuasive (unless the court really wants to adopt the other state's methods, and is looking for an escuse to adopt them. That's activism, and that looks much like why Kennedy cited foreign precendent here)

Want me to cite cases?

Thank you for doing so. Those cases were both using precedent based on issues that were decided well before the US was even formed. Since the US had no precedent on the issues, it makes sense that they'd rely heavily on the precedent of other countries (especially in the 1820 case,as both France and Britain could militarily force the US to enforce piracy laws if need be) This case is different, as we've has 200+ years of dealing with capital crimes involving 16-18 year olds.

And Kennedy did look at them as well. He also looked at the persuasive authority of foriegn practice, and decided that those combined indicated a movement country and international wide banning execution for those under 18.

Since there is US precedent on this matter, the foreign practices should merit only a cursory mention at best.

[Zulu Elephant]

And come to think of it (with regards to people argueing - although rightly in my view - that world opinion/world precident should have no bearing on the court's deliberations)...

Wasn't the decision to declare segregation unconstitutional taken (at least in part) because it was thought that the country at the forefront of fighting against communist dictatorships in the world should not be seen around the globe to be infringing on the freedoms of a large majority of it's own people. Surely that is taking a decision based on world opinion?

[Imran Siddiqui]

There'd be no reason to cite other state precedent if your own state's precedents clearly supported your case.

Well, you'd want other state precedent to back your own state's precedent. You can't just rely on your own precedent. You have to make sure to prove that your state isn't backward.

unless the court really wants to adopt the other state's methods, and is looking for an escuse to adopt them. That's activism, and that looks much like why Kennedy cited foreign precendent here

Was ending segreation 'activism'? After all, there was no precedent that spoke to what happened in Brown v. Board. Could it be that Kennedy was persuaded that the US was going in the wrong direction? After all, he was one of the 5 who said we can execute 17 and 18 year olds back in 1989.

Those cases were both using precedent based on issues that were decided well before the US was even formed.

So? No one still voted on them, even in their own home countries. Britain has been around for much longer, and still adopts customary international law based on international precedent. And the US Constitution does say the 'law of nations' is law of the land. "Law of nations" stands for the custonary law, whether it happened before the formation of the US or afterwards.

Oh, and The Pequete Habana also used custom after the formation of the US, such as how the US treated Mexican fishing boats in the Mexican-American War of 1846. That was not a result of Congressional law.

This case is different, as we've has 200+ years of dealing with capital crimes involving 16-18 year olds.

Doesn't matter. International custom was moving towards 18 as the age of execution. Only the US, Saudi Arabia, China, and one or two other countries have executed people under 18. The custom was against us, and it doesn't matter if we've dealt with those crimes, we still have to consider custom.

Since there is US precedent on this matter, the foreign practices should merit only a cursory mention at best.

I disagree, especially since the US has become one of the last 5 states in the world to engage in the practice. Foriegn practice is very relevent, especially since it has become custom.. which is Constitutionally protected ("law of nations" again).

[Wycoff]

Originally posted by Imran Siddiqui
Was ending segreation 'activism'? After all, there was no precedent that spoke to what happened in Brown v. Board. Could it be that Kennedy was persuaded that the US was going in the wrong direction? After all, he was one of the 5 who said we can execute 17 and 18 year olds back in 1989.

Regretably, I haven't yet read the Brown decision yet (its coming up within the next few weeks in my Con Law class). From my understanding, it was mainly based on seperate but equal being unequal. Not sure how much international opinion mattered in that decision, so I can't really answer how it applies here.

Those cases were both using precedent based on issues that were decided well before the US was even formed.

So? No one still voted on them, even in their own home countries. Britain has been around for much longer, and still adopts customary international law based on international precedent. And the US Constitution does say the 'law of nations' is law of the land. "Law of nations" stands for the custonary law, whether it happened before the formation of the US or afterwards.

Oh, and The Pequete Habana also used custom after the formation of the US, such as how the US treated Mexican fishing boats in the Mexican-American War of 1846. That was not a result of Congressional law.

My first point (the US not existing) was based on the fact that it was free to draw precedent from somewhere if necessary (though it wasn't obligated to do so.)

The "law of nations" helped me think of a further distinction that I hadn't thought of. Another reason why using international precedent in these cases would make sense is because these dealt with international issues. They inherently involve more than one state, so you'd have to look at other nation's laws out of necessity. This is given support by the fact that the "law of nations" language is in Art 1 §8, clause 10, which gives Congress the right to "define and punish Piracies and Felonies on the High Seas, and offenses against the Law of Nations." Structurally, that implies such inherently international matters that occur outside of the territorial US; why else would it be included with those crimes mentioned above?

Deciding when to use our death penalty is an internal matter, not inherently international and, thus, has nothing to do with the "laws of nations" as mentioned in the Constitution. The 8th Amendment does not mention the "law of nations."

Doesn't matter. International custom was moving towards 18 as the age of execution. Only the US, Saudi Arabia, China, and one or two other countries have executed people under 18. The custom was against us, and it doesn't matter if we've dealt with those crimes, we still have to consider custom.

I disagree, especially since the US has become one of the last 5 states in the world to engage in the practice. Foriegn practice is very relevent, especially since it has become custom.. which is Constitutionally protected ("law of nations" again).

Again, since this isn't an inherently international matter, I don't see why foreign practice should be very persuasive to SCOTUS. If its persuasive anywhere in our government, it should be persuasive in Congress.

[Imran Siddiqui]

I haven't yet read the Brown decision yet (its coming up within the next few weeks in my Con Law class). From my understanding, it was mainly based on seperate but equal being unequal. Not sure how much international opinion mattered in that decision, so I can't really answer how it applies here.

Not arguing international views coming into play, but lack of legal authority. It was about how segregation makes black kids feel inferior, which is why it was unequal. It mainly used psychological studies over cases.

the right to "define and punish Piracies and Felonies on the High Seas, and offenses against the Law of Nations." Structurally, that implies such inherently international matters that occur outside of the territorial US; why else would it be included with those crimes mentioned above?

Because punishing piracy and felonies on the high seas is a part of customary international law. And why do you think piracy always deals with international issues? What if a person from Virginia went into the high seas and picked off US vessels? No international incident dealt with, but definetly allowed to be punished under international custom.

Deciding when to use our death penalty is an internal matter, not inherently international and, thus, has nothing to do with the "laws of nations" as mentioned in the Constitution.

Laws of nations applies to customary international law. It doesn't have to be an international incident. Many customary issues deal with internal policy (Genocide, Apartheid, Torture, etc). The US has signed treaties on those issues, but those prohibitions apply to people from countries which has not signed the treaties. The US can try those people even though their countries don't talk about it. Its solely based on custom (ius cogens, which is like a super custom).

The article did not say laws of nations dealing with international issues, it said laws of nations. And yes, back then there were customary law issues dealing with internal policy (such as the piracy example I used above, which is solely a domestic thing).

There has been NO implication that 'laws of nations' only applied to those which are international issues. Custom does not solely apply to issues involving two or more countries.

Furthermore, there has been NO requirement to look at the laws of other country's if an issue applies to them. US Courts have, on many occasions, said in matter of international issues, we are using our law and not looking at the country's law. So that doesn't fit either.

I don't see why foreign practice should be very persuasive to SCOTUS.

Because it indicates perhaps a new custom. And it may help guide the jurisprudence by looking at the legal reasoning of those foreign judgements. When they consider execution of those under 18 to be cruel, wouldn't you be interested why they claim that?

[Wycoff]

Originally posted by Imran Siddiqui

the right to "define and punish Piracies and Felonies on the High Seas, and offenses against the Law of Nations." Structurally, that implies such inherently international matters that occur outside of the territorial US; why else would it be included with those crimes mentioned above?

Because punishing piracy and felonies on the high seas is a part of customary international law. And why do you think piracy always deals with international issues? What if a person from Virginia went into the high seas and picked off US vessels? No international incident dealt with, but definetly allowed to be punished under international custom.

Deciding when to use our death penalty is an internal matter, not inherently international and, thus, has nothing to do with the "laws of nations" as mentioned in the Constitution.

Laws of nations applies to customary international law. It doesn't have to be an international incident. Many customary issues deal with internal policy (Genocide, Apartheid, Torture, etc). The US has signed treaties on those issues, but those prohibitions apply to people from countries which has not signed the treaties. The US can try those people even though their countries don't talk about it. Its solely based on custom (ius cogens, which is like a super custom).

The article did not say laws of nations dealing with international issues, it said laws of nations. And yes, back then there were customary law issues dealing with internal policy (such as the piracy example I used above, which is solely a domestic thing).

There has been NO implication that 'laws of nations' only applied to those which are international issues. Custom does not solely apply to issues involving two or more countries.

Furthermore, there has been NO requirement to look at the laws of other country's if an issue applies to them. US Courts have, on many occasions, said in matter of international issues, we are using our law and not looking at the country's law.

Assuming everything else you said is true, I don't see how the bolded part supports your argument that its alright for SCOTUS to use foreign custom to substantially decide cases. Even in cases in which we are dealing with international issues, we are applying our own laws, as indicated by Congress' right to define and punish the Laws of Nations. Doesn't that explicitly gives Congress the right to define what exactly international customs are (at least, what they are as far as the US govt. is concerned?) How does that support the propsition that foreign practices are a legitimate basis on which to rule on our Constitutional issues? If anything, that would seem to indicate the opposite; that international customs are only as important as Congress decides to make them.

Because it indicates perhaps a new custom. And it may help guide the jurisprudence by looking at the legal reasoning of those foreign judgements.

It may indicate a new foreign custom, but what does that matter when deciding on the American Constitution? I can intellectually understand that a court may compare them; I just don't think they should have much weight.

[Imran Siddiqui]

I don't see how the bolded part supports your argument that its alright for SCOTUS to use foreign custom to substantially decide cases.

It is showing you tthat it is a matter of choice on when the Supreme Court can use foriegn precedent. They are not required to do so, but they can also use foriegn cases and statutes if they think it is important.

. Doesn't that explicitly gives Congress the right to define what exactly international customs are (at least, what they are as far as the US govt. is concerned?)

That would defeat the purpose of including 'offenses against the laws of nations'. Congress may punish violation of those laws, but those laws of nations come from customary international law, which Congress may include a penalty. How can Congress decide what laws the countries of the world must follow ('laws of nations' by definition applies to more than one country)?

Here is an excerpt of The Paquete Habana, quoting part of Hilton v. Guyot:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.

It may indicate a new foreign custom, but what does that matter when deciding on the American Constitution?

Because their legal reasoning may be a persuasive way of interpreting what vague words in the US Constitution should mean.

[DinoDoc]

Re American law conforming to world norms: More fundamentally, however, the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law—including not only such explicit provisions
of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively
American. When we adopted that rule in Mapp v. Ohio, 367 U. S. 643, 655 (1961), it was “unique to American
Jurisprudence.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 415 (1971) (Burger, C. J., dissenting). Since then a categorical exclusionary rule has been “universally
rejected” by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries “appears to have any alternative form of discipline for police that is effective in preventing search violations.” Bradley, Mapp Goes Abroad, 52 Case W. Res. L. Rev. 375, 399–400 (2001). England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions.

...

The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners,or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry. Scalia continues to pwn all.

[Wycoff]

Originally posted by Imran Siddiqui

I don't see how the bolded part supports your argument that its alright for SCOTUS to use foreign custom to substantially decide cases.

It is showing you tthat it is a matter of choice on when the Supreme Court can use foriegn precedent. They are not required to do so, but they can also use foriegn cases and statutes if they think it is important.

. Doesn't that explicitly gives Congress the right to define what exactly international customs are (at least, what they are as far as the US govt. is concerned?)

That would defeat the purpose of including 'offenses against the laws of nations'.

It says that Congress may define and punish offenses against the Law of Nations. To me, that says that Congress defines the Law of Nations (not as they apply to all nations, but as they apply to the US. As you rightly pointed out, Congress doesn't create the laws for the world) This means that if there was a custom that Congress didn't agree with, it simply wouldn't define a breach of that custom to be a punishable "offense aginast the Law of Nations." The language doesn't indicate to me that Congress is bound to punish all breaches to the "Law of Nations" If it were, then it wouldn't be given the power to "define" the offense against the Law of Nations. This implies that Congress decides which "Laws of Nations" are relevant to the US and which "Laws of Nations" are irrelevant for us. Therfore, international custom is only as important to US law as Congress says it is, and Congress determines which customs cannot be breached.

That interpretation provides Constitutional support for a claim that it's up to Congress, not SCOTUS, to say what part of the "Law of Nations" is important to the US. That would seem to make it wrong to base a Constiutional decision on foreign customs not designated by Congress as being important.

I recommend reading The Paquete Habana to see how customary international law is important in our jurisprudence.

Thanks for the recommendation. It sounds like it would be interesting.

Because their legal reasoning may be a persuasive way of interpreting what vague words in the US Constitution should mean.

I'm not arguing that the foreign processes couldn't be intellectually persuasive to a justice, just that they shouldn't serve as the main basis for a ruling; rather, they are the last resort, the "cherry on top" of a mountain of persuasive US based evidence. Using them as a fundamental part of a ruling, IMO, would be wrong.

[Drake Tungsten]

Damn, Scalia did pwn the majority with that...

[Imran Siddiqui]

Scalia has always been hostile to looking at foriegn law by not looking at the numerous precedents where the Court has looked to laws of other countries as persuasive authority. Simply because some laws are unique to American jurisprudence, doesn't mean that in those situations which are similar to foriegn issues, the Court should not even consider foriegn authority as persuasive authority, because it has done so in the past.

Scalia should know better .

[Imran Siddiqui]

It says that Congress may define and punish offenses against the Law of Nations. To me, that says that Congress defines the Law of Nations (not as they apply to all nations, but as they apply to the US. As you rightly pointed out, Congress doesn't create the laws for the world) This means that if there was a custom that Congress didn't agree with, it simply wouldn't define a breach of that custom to be a punishable "offense aginast the Law of Nations."

The Court has not agreed with that reading. It has applied international custom in plenty of cases where Congress has not legislated. Congress gets to assign criminal or civil punishments, but customary international law may be invoked by the Court in deciding cases on equity basis.

I'm not arguing that the foreign processes couldn't be intellectually persuasive to a justice, just that they shouldn't serve as the main basis for a ruling; rather, they are the last resort, the "cherry on top" of a mountain of persuasive US based evidence. Using them as a fundamental part of a ruling, IMO, would be wrong.

You still haven't convinced me why. Looking at the practice at the rest of the world, and deciding the US is backwards in defining such vague ideas like 'cruel and unusual punishment' seem to be a valid exercise of the Court's power. It has to define the term in some way.

Furthermore, the case was mainly decided on the fact that US STATE practice had shown a consensus. Foriegn practice was used as support. The decision had 4 parts. It was the 4th part, which was at the end, which talked about international practice.

[DinoDoc]

Originally posted by Drake Tungsten
Damn, Scalia did pwn the majority with that...

He continued the pwnage for several paragraphs between the two I quoted. The most persuasive and on point bit was the one about us being one of only six countries that allow abortion on demand until the point of viability. I'd laugh my ass off if an anti-abortion group connected that statement with the special weight SCOTUS gave international opinion and tossed the arguement back in their faces.

[Drake Tungsten]

This is good, too.

It happens that only 15 years ago the Supreme Court found that the kind of statute in question was constitutional. But, rather than overturning that case, the court yesterday found that in the last 15 years a national consensus against such punishment had emerged. The majority based that conclusion on the fact that "18 states -- or 47 percent of states that permit capital punishment -- now have legislation prohibiting the execution of offenders under 18," and four of those states have adopted such legislation since the Supreme Court's ruling of 15 years ago.

As Justice Antonin Scalia fumed in his dissent: "Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time." In this case, a majority of relevant states approve the practice.

I'd laugh my ass off if an anti-abortion group connected that statement with the special weight SCOTUS gave international opinion and tossed the arguement back in their faces.

It would indeed be hilarious, but I doubt anything would come of it. I doubt the SCOTUS would look so kindly upon the international consensus in that case...

[Imran Siddiqui]

Wycoff, here is a part of Kennedy's opinion:

This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." 356 U. S., at 102-103 (plurality opinion) ("The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime"); see also Atkins, supra, at 317, n. 21 (recognizing that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved"); Thompson, supra, at 830-831, and n. 31 (plurality opinion) (noting the abolition of the juvenile death penalty "by other nations that share our Anglo-American heritage, and by the leading members of the Western European community," and observing that "[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual"); Enmund, supra, at 796-797, n. 22 (observing that "the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe"); Coker, supra, at 596, n. 10 (plurality opinion) ("It is ... not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue").

also:

The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

It was supporting and not controlling in the decision.